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12 July 2013

The Banning of Content under the CrPC

The Criminal Procedure Code, 1973, (i.e. the CrPC), is the Indian statute which allows for the banning of content within the country (although it uses the term ‘forfeiture’ and not ‘banning’). The Customs Act which also deals with ‘banning’ focuses on prohibitions relating to the import and export of specific works to and from the country, and not on the actual banning of content itself.

In essence, Section 95 of the CrPC empowers State Governments to declare publications (satisfying certain criteria) forfeited through a notification and allows Magistrates to issue search warrants for such publications.

No prior notice or hearing is contemplated before action is taken under Section 95 of the CrPC [Piara Singh Bhaniara v. State of Punjab, 2009 (1) Punj LR 766] although there are safeguards to (attempt to) ensure that the State Government has applied its mind in issuing a notification under the Section — notifications must contain the grounds upon which they have been issued [Mohammad Khalid, AIR 1968 Del 13 (FB)] else they are liable to be set aside [Barjinder Singh v. State of Punjab, 1993 CrLJ 2040 (P&H-FB)]. This, however, does not mean that the grounds must be in the form of elaborate explanations [Virendra Bandhu v. State, AIR 1980 Raj 241, 248 (FB)]. Also, if a State Government thinks a notification it has issued suffers from a technical defect, it may issue a second notification. [Sujato Bhadra v. State of West Bengal, 2006 CrLJ 368 (393) (SB); State of U. P. v. Lalai Singh Yadav, AIR 1977 SC 202 apud. Barjinder Singh v. State Of Punjab and Ors., 1993 CriLJ 2040]

That said, the power of State Governments is not entirely unrestrained: the subsequent Section (96) of the CrPC deals with applications to the relevant High Court to set aside declarations of forfeiture. Case law indicates that such applications should be filed in the High Court of the State where the notification has been issued. [Gopal, (1969) 72 Bom LR 871 SB : Gopal Vinayak Godse v. The Union of India and Ors., AIR 1971 Bom 56]

In addition to this, a declaration of forfeiture may also be challenged through a writ petition as indicated in the case of Sadhu Singh Hamdard Trust v. State of Punjab and Ors. [1992 CriLJ 1002]. And if a notification issued under Section 95 of the CrPC is found to be invalid, the High Court could conceivably award compensation to the aggrieved party. [Barjinder Singh v. State Of Punjab and Ors., 1993 CriLJ 2040]

The statute itself reads as follows:

Section 95, CrPC. Power to declare certain publications forfeited and to issue search warrants for the same.

(1) Where —
(a) any newspaper, or book, or
(b) any document,
Wherever printed appears to the State Government to contain any matter the publication of which is punishable under Section 124A or Section 153A or Section 153B or Section 292 or Section 293 or Section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the news paper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.

(2) In this section and in section 96, —
(a) "newspaper" and "book" have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867) [under which "Book" includes every volume, part of division of a volume, and pamphlet, in any language, and every sheet of music, map, chart or plan separately printed; and "Newspaper" means any printed periodical work containing public news or comments on public news];
(b) "document" includes any painting, drawing or photograph, or other visible representation.

(3) No order passed or action taken under this section shall be called in question in any court otherwise than in accordance with the provisions of Section 96.

Section 96. Application to High Court to set aside declaration of forfeiture.

(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under Section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of Section 95.

(2) Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.

(3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made.

(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (1) of Section 95, set aside the declaration of forfeiture.

(5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges.

The Supreme Court has explained the working of the two Sections in the 2010 case of State of Maharashtra & Ors. v. Sangharaj Damodar Rupawate & Ors. [Indian Kanoon], in the following terms:

"Section 95 of the Code is an enabling provision, which, in the circumstances enumerated in the Section, empowers the State Government to declare that copy of a newspaper, book or document be forfeited to the Government. It is evident that the provision deals with any newspaper, book or document which is printed. The power to issue a declaration of forfeiture under the provision postulates compliance with twin essential conditions, viz., (i) the Government must form the opinion to the effect that such newspaper, book or document contains any matter, the publication of which is punishable under Section 124-A [Sedition] or Section 153-A [Promoting enmity between groups and doing acts prejudicial to maintenance of harmony] or Section 153-B [Imputations, assertions prejudicial to national-integration] or Section 292 [Sale, etc., of obscene books, etc.] or Section 293 [Sale, etc., of obscene objects to young persons] or Section 295-A [Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs] of the IPC, and (ii) the Government must state the grounds of its opinion. Therefore, it is mandatory that a declaration by the State Government in the form of notification, to the effect that every copy of the issue of the newspaper, book or document be forfeited to Government, must state the grounds on which the State Government has formed a particular opinion. A mere citation of the words of the Section is not sufficient.

Section 96 of the Code entitles any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture is made under Section 95 of the Code, to move the High Court for setting aside the declaration on the ground that it does not contain any such matter as is referred to in sub-section (1) of Section 95."

Although Section 95 of the CrPC refers to ‘documents’, ‘books’ and ‘newspapers’ separately, given the manner in which these terms have been defined in both the CrPC and the PRB Act referenced in the CrPC, the Section could potentially apply to all printed matter including matter in electronic or digital form. Further, there is nothing in the Section to indicate that the place where a work has been printed/published is relevant; a State Government may ‘ban’ a work regardless of the place of printing/publication, and the ‘ban’ would thereafter apply throughout India as indicated by Section 95 of the CrPC — under the Section, any police officer may seize copies of a work which has been ‘banned’ wherever in India it is found and any Magistrate may issue a warrant authorising any police officer (not below the rank of sub-inspector) to enter and search premises (where copies of a work which has been ‘banned’ may be or may be reasonably suspected to be).

Given how broad the scope of Section 95 of the CrPC is, courts have raised the issue of the power under it being balanced with an appropriate remedy [AIR 1971 Bom 56], and have indicated that the power under it is not intended to be used either to ‘ban’ scriptures [Chandmal Chopra v. State of West Bengal, 1988 CrLJ 739 (Cal-DB)], or scholarly works on history or religion [Varsha Publications Private Limited v. State of Maharashtra, 1983 CrLJ 1446 (Bom)].

Publications should also ‘be viewed as a whole and the intent of the author has to be gathered from a broader perspective and not merely from a few solitary lines or quotations’. [Nand Kishore Singh v. State of Bihar, AIR 1986 Pat 98]. In 2010, the Supreme Court acknowledged that inflexible guidelines could not be framed on the subject but it laid down the following with reference to testing the validity of notifications under Section 95 of the CrPC in the case of State of Maharashtra & Ors. v. Sangharaj Damodar Rupawate & Ors. [Indian Kanoon]:

"It would thus, appear that no inflexible guidelines can be laid down to test the validity of a notification issued under Section 95 of the Code. Nonetheless the following legal aspects can be kept in mind while examining the validity of such a notification:

(i) The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. Therefore, the grounds of Government's opinion must be stated in the notification issued under Section 95 of the Code and while testing the validity of the notification the Court has to confine the inquiry to the grounds so disclosed;

(ii) Grounds of opinion must mean conclusion of facts on which opinion is based. Grounds must necessarily be the import or the effect or the tendency of matters contained in the offending publication, either as a whole or in portions of it, as illustrated by passages which Government may choose. A mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. However, at the same time, it is not necessary that the notification must bear a verbatim record of the forfeited material or give a detail gist thereof;

(iii) The validity of the order of forfeiture would depend on the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the grounds given by the Government justify the order. However, it is not the duty of the High Court to find for itself whether the book contained any such matter whatsoever;

(iv) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited;

(v) The intention of the author has to be gathered from the language, contents and import of the offending material. If the allegations made in the offending article are based on folklore, tradition or history something in extenuation could perhaps be said for the author;

(vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful kind of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A of the IPC;

(vii) Section 95(1) of the Code postulates that the ingredients of the offences stated in the notification should ‘appear’ to the Government to be present. It does not require that it should be ‘proved’ to the satisfaction of the Government that all requirements of punishing sections, including mens rea, were fully established;

(viii) The onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof;

(ix) The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing."

It is also worth noting that the statute itself contains safeguards. Section 95 of the CrPC contains a list of grounds under which content may be banned; while challenging a ban, a plea may be made that these grounds are not satisfied. In fact, Section 96(4) of the CrPC explicitly states that the High Court shall set aside the notification ‘banning’ a work if it is not satisfied that the relevant work contained any matter satisfying the grounds listed in Section 95 (i.e. that the work contained content in violation of Sections 124A, 153A, 153B, 292, 293 or 295A of the IPC).

The application made to the High Court for the setting aside of a declaration / notification ‘banning’ a work must be made within two months from the date of its publication in the Official Gazette as per the statute although, (despite the applicability of Section 5 of the Limitation Act), the two-month period may be extended by the High Court in an appropriate case. [Azizul Haq v. State, AIR 1980 All 149, 152 (FB)]

Further, any citizen may file an application for the setting aside of a declaration / notification ‘banning’ a work. In fact, in the 2007 case of Sangharaj Damodar Rupawate v. Nitin Gadre, the Bombay High Court explicitly stated:

"In our opinion it will not be possible to place such restricted meaning to the expression 'any person having an interest'. The right of a citizen to be informed is a part of our cherished fundamental right of freedom of speech and expression. Even if Section 95 amounts to a reasonable restriction, yet the Government must satisfy that the act of forfeiture was according to law. A citizen therefore, having an interest in the right to be informed, as a larger part of his right of freedom of speech and expression, will be a person having any interest."

As such, although the scope of Section 95 of the CrPC is extremely broad and gives rise to concerns relating to free speech, there are inbuilt safeguards in it as well as which mechanisms through which notifications issued under it can be challenged — from that perspective, the provisions dealing with the banning of content under the CrPC cannot truly be described as being draconian.

Reference: 19th Edition of Ratanlal and Dhirajlal on The Code of Criminal Procedure

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